Citation Nr: 1804650
Decision Date: 01/24/18 Archive Date: 02/05/18
DOCKET NO. 12-24 981 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington
THE ISSUES
1. Entitlement to service connection for the Veteran's cause of death.
2. Whether there is new and material evidence to reopen Veteran's claims for entitlement to service connection for diabetes mellitus, type II.
3. Whether there is new and material evidence to reopen Veteran's claims for entitlement to service connection for malignant neoplasms of the reproductive system, claimed as prostate cancer.
4. Entitlement to service connection for diabetes mellitus, type II.
5. Entitlement to service connection for malignant neoplasms of the reproductive system, claimed as prostate cancer.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Douglas M. Humphrey, Associate Counsel
INTRODUCTION
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).
The Veteran served on active duty from December 1965 to September 1968. The Veteran died in June 2009.
This appeal comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington denying service connection for Type II diabetes and prostate cancer due to Agent Orange exposure, and a September 2010 rating decision of the VA Regional Office and Insurance Center (ROIC) in St. Paul, Minnesota denying entitled to dependency and indemnity compensation (DIC) because the appellant and Veteran were divorced at the time of the Veteran's death. Jurisdiction of the appeal currently resides with the Seattle, Washington, RO.
Even though appellant and the Veteran were divorced and never remarried, a February 2012 administrative decision from the ROIC determined that the post-divorce relationship between appellant and the Veteran met the requirements for a common law marriage for VA purposes.
In September 2013, appellant testified before a Veterans Law Judge (VLJ) other than the undersigned. In September 2017, the Board notified appellant that the VLJ who presided over her September 2013 hearing was no longer a Board employee. In an October 2017 written statement, appellant indicated that she did not wish to appear at another Board hearing and requested that the Board consider this case on the evidence of record.
The Board notes some irregularity in the record regarding the issues on appeal. Specifically, appellant's March 2011 notice of disagreement (NOD) seemingly specified her disagreement with the ROIC's denial of DIC and did not specifically state her disagreement with the ROIC's denial of entitlement to accrued benefits and death pension benefits. The record also indicates that appellant did not perfect an appeal of the RO's February 2009 denial of service connection for diabetes mellitus, type II and prostate cancer following the RO's issuance of a March 2015 supplemental statement of the case, which was the first statement of the case issued as to those issues. However, in light of the Board's January 2014 remand and subsequent development following that remand, it appears appellant has reason to believe the issues of entitlement to service connection for diabetes mellitus, type II and prostate cancer are still on appeal. Therefore, the Board deems that it has waived any objections to the timeliness and scope of appellant's filings and concludes that the five issues enumerated above are properly before the Board. See Percy v. Shinseki, 23 Vet. App. 37, 45-47 (2009) (noting substantive appeals are not jurisdictional requirements and the Board may constructively waive objections regarding the timeliness of substantive appeals); Buckley v. West, 12 Vet. App. 76, 82 (1998) (discussing the legal considerations guiding the Board's evaluation of the scope of an NOD).
FINDINGS OF FACT
1. The Veteran's death certificate indicates that he died in June 2009, at the age of 62. The death certificate recorded the Veteran's immediate cause of death as metastatic lung cancer, identified adenocarcinoma of the prostate as leading to the Veteran's death, and identified diabetes mellitus, type II as a significant condition contributing to death.
2. Appellant is the Veteran's surviving spouse for VA purposes.
3. At the time of the Veteran's death, service connection was in effect for post-traumatic stress disorder (PTSD), rated as 100 percent disabling effective May 2, 2007; he had claims for entitlement to service connection for diabetes mellitus, type II and prostate cancer-both of which were purportedly due to Agent Orange exposure-pending at the time of his death.
4. The Veteran's cause of death was not etiologically related to the Veteran's active naval service.
5. A December 2002 rating decision denied entitlement to service connection for, inter alia, diabetes mellitus, type II, prostate cancer, and hepatitis C; the Veteran did not perfect an appeal of that decision to the Board.
6. An October 2006 rating decision denied the Veteran's May 2006 petition to reopen his claim for entitlement to service connection for hepatitis C; the Veteran did not perfect an appeal of that decision to the Board.
7. Evidence added to the record since December 2002 is not previously of record, is not cumulative of other evidence of record, and raises a reasonable possibility of substantiating the claim for entitlement to service connection for diabetes mellitus, type II and prostate cancer.
8. The Veteran's diabetes mellitus, type II was not etiologically related to the Veteran's active naval service.
9. The Veteran's prostate cancer was not etiologically related to the Veteran's active naval service.
CONCLUSIONS OF LAW
1. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 1310, 5102, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312, 3.313 (2017).
2. The December 2002 rating decision denying entitlement to service connection for diabetes mellitus, type II, prostate cancer, and hepatitis C is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1103, 20.1104 (2017).
3. New and material evidence has been received; the claim for entitlement to service connection for diabetes mellitus, type II and prostate cancer is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
4. The criteria for entitlement to service connection for diabetes mellitus, type II are not met. 38 U.S.C. §§ 1110, 1116, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.313 (2017).
5. The criteria for entitlement to service connection for prostate cancer are not met. 38 U.S.C. §§ 1110, 1116, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.313 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VA's Duties to Notify and Assist
VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).
In the context of a claim for service connection for the cause of death, VCAA notice must include (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). VA satisfied its duty in a January 2010 letter. That letter, while specifically related to appellant's claim for service-connected burial benefits, stated that the Veteran was service connected for PTSD, instructed appellant to submit evidence that showed a service-connected disability was the primary or contributory cause of death, and requested evidence showing that the Veteran had served in or disembarked in Vietnam between January 9, 1962 and May 7, 1975. A January 2015 letter satisfied VA's duty to notify appellant concerning her claims to accrued benefits.
The Board notes neither appellant nor her representative has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances . . . it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . . ." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required.
VA has also fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate a claim. Service, VA, and private medical records were obtained. No additional opinion is required regarding the appellant's DIC claim. 38 U.S.C. § 5103A(a); Delarosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (noting that Section 5103A(a), and not (d), applies to DIC claims, and requires that VA need only obtain a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit"). There is no evidence that additional records have yet to be requested or that obtaining additional opinions are in order. The appellant has not asserted any outstanding evidence needed to be considered by the Board. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.
Furthermore, the Board concludes that the RO has complied with all remand orders, and the matter is once again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998).
II. Service Connection for the Cause of the Veteran's Death
A. Laws and Regulations
The appellant contends that the Veteran's prostate cancer, which was a contributory cause of his death insofar as it was the cause of the Veteran's lung cancer, is etiologically related to his naval service. Specifically, appellant contends that the Veteran's service on the U.S.S. Kitty Hawk while it was deployed to the official waters of the Republic of Vietnam exposed the Veteran to herbicide agents, to include Agent Orange, and that exposure is etiologically related to the Veteran's cause of death.
Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, the evidence must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017).
Service connection for the cause of the veteran's death may be granted if a disability incurred in or aggravated by service was either the principle, or a contributory, cause of the veteran's death. 38 C.F.R. § 3.312(a). For a service-connected disability to be the principle cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. Id. § 3.312(b).
For a service-connected disability to be a contributory cause of death it must have contributed substantially or materially, and combined to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(c)(1). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. "Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death." 38 C.F.R. § 3.312(c)(3).
If a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, certain enumerated diseases shall be service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e). Of note, any period of service is sufficient for the purpose of establishing the presumptive service connection of a specified disease under the conditions listed in §3.309(e). 38 C.F.R. § 3.307(a)(1).
Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309.
The Board must determine whether statements and testimony are competent and credible, and if so, determine the probative weight of the evidence. Generally, witnesses are competent to report what a veteran has told them about his/her active service. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge). Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled, or tasted. Layno v. Brown, 6 Vet. App. 465 (1994).
The Board must determine, as questions of fact, both the weight and credibility of the evidence. Statements regarding a veteran's active service must be viewed in conjunction with other evidence of record. The probative value of statements is determined by the persons' competency as well as their credibility insofar as their statements and/or testimony concerning a veteran's service are consistent with other evidence of record. See Rucker v. Brown, 10 Vet. App. 67 (1997) & Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, defined as "a legal concept determining whether testimony may be heard and considered" and credibility, defined as "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). "Credibility involves more than demeanor," and embraces "the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence." Carbo v. United States, 314 F.2d 718, 749 (9th Cir. 1963).
The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, the demeanor of the witness, the facial plausibility of the testimony, the internal consistency of the testimony, impairment in memory, or, to a certain extent, bad character, among other factors. Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In particular, personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).
Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must analyze the probative value of all material evidence submitted by and on behalf of a veteran, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to a veteran. See Struck v. Brown, 9 Vet. App. 145, 152 (1996). A person's credibility affects the weight to be given to his or her testimony and lay statements, and it is the Board's responsibility to determine the appropriate weight. See Washington, 19 Vet. App. at 368.
B. Analysis
As an initial matter, the Board notes that it will follow the February 2012 administrative decision of the ROIC, and recognize appellant as the Veteran's surviving spouse for VA purposes. The Board further notes that appellant has not re-married or publicly held herself out as married to anyone else since that decision.
The Veteran's service treatment records do not include any diagnoses for prostate cancer or diabetes mellitus, type II. According to a September 2002 letter from Dr. J.D.L. summarizing his treatment of the Veteran, the Veteran's prostate cancer was first diagnosed in mid-1999 and he underwent a radical prostatectomy in July 1999. Dr. J.D.L. reported that the Veteran had no evidence of prostate cancer through at least April 2001. Private treatment records from Dr. G.A.M. show that the Veteran received a diagnosis of diabetes mellitus, type II in July 2000. Both diagnoses occurred more than 30 years after the Veteran's separation from active service.
A November 2012 letter from Dr. J.R.C., another of the Veteran's treating physicians, noted that the Veteran's prostate-specific antigen remained low from at least 2001 until July 2005 when it spiked. The Veteran underwent treatment for prostate cancer, but by 2008, the prostate cancer had metastasized to the bone and then to the lung. Dr. J.R.C. noted that the Veteran kept his diabetes under control.
A November 2005 letter from Dr. M.S.M., another of the Veteran's treating physicians, accords with Dr. J.R.C.'s November 2012 letter, noting that the Veteran's prostate cancer was being treated with Lupron injections, but was incurable as of late 2005.
There is no objective, probative evidence of record showing a direct etiological relationship between the Veteran's active service and the Veteran's cause of death. Appellant's principal contention is that the Veteran's prostate cancer-and to a lesser degree, his diabetes mellitus, type II-are etiologically related to Agent Orange exposure during his service aboard the U.S.S. Kitty Hawk.
The record shows that the Veteran completed two tours aboard the U.S.S. Kitty Hawk from December 1965 to at least June 1966 and from December 1967 to May 1968. The RO requested a response from the National Personnel Record Center (NPRC) regarding the Veteran's in-country service in Vietnam. A September 2002 response from the NPRC indicated that the U.S.S. Kitty Hawk was in the official waters of Vietnam; however, there was no record that proved the Veteran served on the ground or ever set foot in Vietnam. The RO also requested the deck logs for the U.S.S. Kitty Hawk. A September 2011 letter from the National Archives Records Center showed that the U.S.S. Kitty Hawk was engaged in flight operations off North Vietnam with periodic port calls at Subic Bay, Philippines and Hong Kong from December 1966 to May 1967. In May 1967, the U.S.S. Kitty Hawk departed Southeast Asia to return to San Diego, California, making a port of call in Yokosuka, Japan while en route. The National Archives Records Center noted that ships as large as the U.S.S. Kitty Hawk were too large to navigate the inland waters of Vietnam or to dock in South Vietnam, which did not have adequate port facilities to accommodate ships of that size.
Based on the foregoing, the Board concludes that the Veteran's service aboard the U.S.S. Kitty Hawk does not constitute service in Vietnam. The Veteran served on a deep-water naval vessel in the waters offshore Vietnam, and that so-called "blue water" service does not qualify as service in Vietnam. See Haas v. Peake, 525 F.3d 1168, 1193-94 (Fed. Cir. 2008); VAOPGCPREC 27-97. The Board notes that VA has promulgated a listing of the Navy ships (including blue water ships) associated with service in Vietnam and, hence, exposure to herbicide agents. See VBA Training Letter 10-06 (Sept. 2010). The U.S.S. Kitty Hawk is not included in that list as of the most recent update in November 2017. The Veteran's duties on the flight deck did not include shore visits. Because the Veteran did not have service within Vietnam for purposes of presumptive service connection pursuant to 38 U.S.C. § 1116, the Board finds that the Veteran's cause of death is not entitled to service connection on the basis of his purported exposure to Agent Orange.
1. Contentions Regarding Recovery of Casualties in Vietnam
In making this decision, the Board has considered appellant's statements and testimony, statements from one of the Veteran's daughters, two statements from one of the Veteran's treating psychologists, and two statements from the Veteran concerning the Veteran's reports of aiding the wounded and handling dead bodies while on active service. At the outset, the Board notes that a January 2017 statement, discussed below, indicates that appellant's statements and testimony, her daughter's statement, and Dr. T.S.C.'s two letters recount the same, one-time event. Accordingly, the Board will summarize the evidence or record concerning that event before assessing competency, credibility and probative weight.
Appellant has testified once and submitted four statements regarding the Veteran's report of an incident that allegedly occurred during his active naval service. The first statement is from July 2013. Appellant noted that the Veteran flew to Vietnam in helicopters to aid in the recovery of wounded soldiers.
In September 2013, appellant testified at a Travel Board Hearing that the Veteran told her a story that he on one occasion boarded a helicopter on the U.S.S. Kitty Hawk and flew to Vietnam to aid in the recovery of dead bodies.
In September 2013, appellant provided a second statement regarding the Veteran's reports of boarding a helicopter to recover soldiers who were wounded or killed in combat. According to appellant, the Veteran, who rarely spoke of his experiences aboard the U.S.S. Kitty Hawk, once broke into tears after an intimate moment and recounted some of those experiences. Appellant stated that the Veteran reported that while he was on deck duty he was once ordered to board a helicopter to go inland to assist in recovering casualties. Appellant stated the Veteran said he did as he was ordered, and upon arrival on land, disembarked from the helicopter and started loading casualties. According to appellant, Veteran expressed his shock at the violence of the scene he encountered.
In March 2015, appellant provided a third statement regarding the Veteran's reports of boarding a helicopter and flying to Vietnam to recover casualties. According to appellant, she woke the Veteran from a nightmare, and he told her the story of being on deck duty during a major air attack. The Veteran reported unloading the wounded from helicopters landing on the U.S.S. Kitty Hawk following recovery efforts in Vietnam. After unloading the wounded, the appellant reports that the Veteran told her that he was ordered to board a helicopter and assist with loading the casualties who were still on land awaiting recovery. According to appellant, the Veteran reported a chaotic, noisy scene, and he did as he was ordered. The Veteran reported that upon landing in Vietnam he encountered a horrifically violent scene that he could never get out of his head, and he noted the smell of the chemicals.
Appellant provided a fourth statement in January 2017. That statement highlights evidence of record from the Veteran's daughter and a May 2016 letter from Dr. T.S.C, and describes the event as the Veteran going ashore to help the wounded back to the U.S.S. Kitty Hawk.
In May 2016, the daughter of the Veteran and appellant reported that her father on a couple of occasions told her the story of a busy day on the flight deck of the U.S.S. Kitty Hawk with numerous helicopters coming and going as part of rescue operations. According the Veteran's daughter, the Veteran reported that he was grabbed and put into a helicopter to go and assist on a rescue mission. The Veteran's daughter reports that the Veteran told her that after they landed a woman with blood covering her face ran to him and handed him a baby, whom the Veteran handed to another soldier. According to the Veteran's daughter, the Veteran did not remember anything else about the mission, to include further recovery efforts or boarding the helicopter to return to the U.S.S. Kitty Hawk.
The record includes two letters from Dr. T.S.C., one of the Veteran's psychologists. In a November 2002 letter, Dr. T.S.C. reported the Veteran's accounts of traumatic events during his active service aboard the U.S.S. Kitty Hawk, including handling dead bodies and having a refugee child cling to him while the boy's dead family members were unloaded. In a May 2016 letter, Dr. T.S.C. reported that during the course of treatment, the Veteran told him a story of a Vietnamese mother trying to give him her baby when he was on the ground in Vietnam to transport wounded back to the U.S.S. Kitty Hawk. Dr. T.S.C. further noted that this was based on his memory, seeing as he had destroyed his treatment records for the Veteran.
The record also includes at least two instances in which the Veteran himself reported an incident concerning casualties brought to the U.S.S. Kitty Hawk. In October 2002, the Veteran completed a questionnaire regarding possible stressors as part of his claim for entitlement for service connection for PTSD. The Veteran noted among his stressors that he unloaded dead and wounded soldiers, women, and children from helicopters to get emergency medical help while aboard the U.S.S. Kitty Hawk.
In January 2008, the Veteran was evaluated as part of his claim for entitlement for service connection for PTSD. The examiner's report from February 2008 includes a section on the Veteran's in-service stressors. That report includes the Veteran's recollection of burnt bodies, some in body bags, and wounded who were brought to the U.S.S. Kitty Hawk, which the Veteran said served as naval hospital during the Vietnam War.
The Board concludes that appellant's statements and testimony competently report what the Veteran told her about his service. However, the Board concludes that appellant's four statements and testimony are not credible. First, appellant's statements and testimony are not consistent with one another. See Rucker, 10 Vet. App. at 74. The statements and testimony conflict on whether the Veteran was collecting dead bodies, aiding in rescuing the wounded, or both. In addition, the March 2015 statement contains details concerning commotion of the flight deck and the smell of chemicals in Vietnam omitted from her earlier statements and testimony. The occasion for the story is also inconsistent. In the September 2013 statement, appellant reports that the Veteran broke down and relayed the story after a quiet evening, whereas her hearing testimony and her March 2015 statement recount that the Veteran told the story after she woke him from bad a dream. See Caluza, 7 Vet. App. at 510-11.
Second, appellant's statements are inconsistent with other evidence of record. See Carbo, 314 F.2d at 749. The Veteran's reports of his in-service stressors recall handling dead bodies and assisting the wounded aboard the U.S.S. Kitty Hawk; however, they do not involve a report of a one-time mission to Vietnam to aid in the recovery of casualties. Appellant's statements are also inconsistent with statements from the Veteran's daughter and Dr. T.S.C. Those statements include the Veteran purportedly handling a refugee child either aboard the U.S.S. Kitty Hawk or while on the ground in Vietnam; however, appellant's statements make no mention of the Veteran either being handed a child by his mother or holding a child while his parents' bodies were unloaded aboard the U.S.S. Kitty Hawk. Thus, the appellant's statements and testimony are not credible.
The Board concludes that the statement of the Veteran's daughter is competent insofar as it relays what the Veteran told her on a handful of occasions concerning his service aboard the U.S.S. Kitty Hawk. The statement is not credible, however. Like appellant's statements, the statement from the Veteran's daughter is inconsistent with other evidence of record. It includes an event involving a Vietnamese mother and a child that is not mentioned in any of appellant's statements or testimony. Moreover, the details regarding the mother and child are inconsistent with the November 2002 statement from Dr. T.S.C. The statement from the Veteran's daughter reports that the child's parents were alive at the time the boy was placed in the Veteran's arms while he was allegedly on the ground in Vietnam; however, Dr. T.S.C.'s letter from November 2002 states that the Veteran held a boy aboard the U.S.S. Kitty Hawk while his parents' bodies were unloaded. Moreover, the Veteran's reports of handling casualties aboard the U.S.S. Kitty Hawk do not accord with his daughter's statement that he aided in the recovery of casualties in Vietnam. Thus, the statement is not credible.
The Board concludes that Dr. T.S.C.'s statements from November 2002 and May 2016 are competent to report what the Veteran said about his active service during treatment with Dr. T.S.C.; however, they too are not credible. First, the statements are inconsistent with one another with respect to the location of the purported event and whether the refugee's child's parents were alive or dead. The November 2002 letter reported that the Veteran was aboard the U.S.S. Kitty Hawk when he held a boy while his parents' bodies were unloaded; however, the May 2016 statement reported that the Veteran was aboard a helicopter in Vietnam when a mother handed her child to him. Second, for the reasons discussed above, Dr. T.S.C.'s November 2002 and May 2016 statements are inconsistent with appellant's statements and testimony, the statement of the Veteran's daughter, and the Veteran's statements that he handled casualties aboard the U.S.S. Kitty Hawk.
Because those statements and testimony are not credible, they cannot demonstrate that the Veteran was ever on the ground in Vietnam while on active naval service.
2. Contentions Regarding Exposure aboard the U.S.S. Kitty Hawk
In a September 2011 statement, appellant contends that the Veteran was exposed to dioxin through the air and non-filtered water that came aboard the U.S.S. Kitty Hawk. She also noted that Australian "blue water" veterans are receiving disability compensation due to dioxin exposure. In an August 2013 letter, appellant contends that the Veteran was exposed to Agent Orange through unfiltered water and airborne access while on flight deck duty. Appellant made similar contentions in a September 2013 statement wherein she argued that Agent Orange seeped into coastal waters, ship anchors and propellers stirred up the settled herbicides, which contaminated the U.S.S. Kitty Hawk's water supplies.
Like the claimant in Haas, these statements from appellant rely on the conclusions of a 2002 study conducted for the Australian Department of Veterans Affairs. This report suggests that Vietnam veterans of the Royal Australian Navy may have been exposed to herbicide compounds by drinking water distilled on board their vessels. Although the Federal Circuit passed no judgment on the validity of studies such as the Australian study, it did highlight the VA's rulemaking with respect to this Australian study:
VA scientists and experts have noted many problems with the study that caution against reliance on the study to change our long-held position regarding veterans who served off shore. First, as the authors of the Australian study themselves noted, there was substantial uncertainty in their assumptions regarding the concentration of dioxin that may have been present in estuarine waters during the Vietnam War. Second, even with the concentrating effect found in the Australian study, the levels of exposure estimated in this study are not at all comparable to the exposures experienced by veterans who served on land where herbicides were applied. Third, it is not clear that U.S. ships used distilled drinking water drawn from or near estuarine sources, or if they did, whether the distillation process was similar to that used by the Australian Navy.
Haas, 525 F.3d at 1194 (quoting 73 Fed. Reg. 20,566, 20,568 (Apr. 16, 2008)). Based on this analysis, VA stated that "we do not intend to revise our long-held interpretation of 'service in Vietnam.'"
Accordingly, appellant's reliance on the Australian study is misplaced and it is not sufficient evidence to support her contentions that the Veteran was exposed to herbicides while serving on the U.S.S. Kitty Hawk. The findings of that study are inconclusive in nature and do not apply to the specific facts and circumstances of the Veteran's case and his service aboard the U.S.S. Kitty Hawk.
During the September 2013 Travel Board Hearing, appellant's representative asserted that the Veteran was exposed to Agent Orange while handling dead bodies on the U.S.S. Kitty Hawk. A February 2008 report for a January 2008 medical examination records a similar statement from the Veteran, claiming secondary exposure from wounded and dead personnel aboard the U.S.S. Kitty Hawk. Those statements, in light of the other evidence of record, do not warrant granting service connection for the Veteran's cause of death.
3. Positive Medical Opinions
In a September 2013 statement, appellant reports that two of the Veteran's treating physicians stated opinions that the Veteran's prostate cancer was due to exposure to Agent Orange. The Board finds that appellant is competent to testify as to what the Veteran's treating physicians have told her, and the Board concludes that the statement is credible. However, the Board concludes that the statement from appellant reporting the treating physicians' opinions is entitled to no probative weight because it does not report the physicians' rationale or reasoning for their opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) ("a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision . . . ."); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.").
The Board also notes that in his November 2012 letter, Dr. J.R.C. noted that Agent Orange exposure is associated with an increased risk for prostate cancer and diabetes, and opined that it was "likely that agent orange exposure during service in defense of our country placed [the Veteran] at increased risk for development of both prostate cancer and diabetes." The Board finds Dr. J.R.C.'s letter competent and credible insofar as it discusses the Veteran's treatment. It is, however, entitled to no probative weight. The opinion is conclusory and does not provide Dr. J.R.C.'s reasoning or analysis beyond the Veteran's purported exposure to Agent Orange. Stefl v. Nicholson, 21 Vet. App. at 125. Moreover, the Board concludes that the Dr. J.R.C. has no personal knowledge of whether the Veteran was exposed to Agent Orange, and is therefore not competent to state that the Veteran was so exposed. See Washington, 19 Vet. App. at 368.
Dr. R.B.M.'s April 2008 letter is likewise entitled to no probative weight. The letter recounts the status of the Veteran's treatment for prostate cancer and his prognosis in 2008; however, it does not express an opinion on whether there is an etiological relationship between the Veteran's prostate cancer and his active service.
4. Contentions Regarding Asbestos Exposure
In a September 2011 statement, appellant contends that the Veteran's lung cancer was caused by alleged asbestos exposure aboard the U.S.S. Kitty Hawk. The Board concludes that this contention is meritless. The medical evidence of record, to include a November 2012 letter from Dr. J.R.C., an August 2011 letter from Dr. L.G.P., and the Veteran's death certificate, conclusively demonstrate that the Veteran's lung cancer was caused by his metastasized prostate cancer.
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In summary, the evidence does not show that the Veteran visited or served within the land borders or inland waterways of Vietnam. Therefore, he is not presumed to have been exposed to herbicides during his active naval service. Appellant's reliance on the 2002 Australian Department of Veterans Affairs is inapposite and does not show that the Veteran was exposed to herbicide agents in service. There is no affirmative probative evidence in the record that he was actually exposed to herbicides in service. Further, there is no competent evidence in the record linking the Veteran's cause of death to any incident of service.
In light of the foregoing, the preponderance of the evidence is against appellant's claim for entitlement to service connection for the Veteran's cause of death. Because the preponderance of evidence is against appellant's claim, the benefit-of-the-doubt rule does not apply, and appellant's appeal is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53.
III. Entitlement to Service Connection for Diabetes Mellitus and Prostate Cancer
A. Petition to Reopen Claim
Irrespective of whether an RO reopens a veteran's claim, the Board must decide whether a veteran has submitted new and material evidence to reopen a claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001).
Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108.
New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).
The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed; its weight is not presumed. Justus v. Principi, 3 Vet. App. 510 (1992).
A December 2002 rating decision denied service connection because there was no nexus between the Veteran's active service and his prostate cancer, diabetes mellitus, type II, or hepatitis C. The Veteran did not appeal that decision.
The Veteran petitioned to reopen his claims for entitlement to service connection for prostate cancer, diabetes, and hepatitis C in May 2006. The RO denied the Veteran's petition to reopen his claim for hepatitis C in October 2006. The Veteran did not appeal that decision.
With respect to the Veteran's remain claims for entitlement to service connection, the evidence since the December 2002 rating decision includes an April 2008 letter from the Veteran's oncologist, Dr. R.B.M., that appellant submitted as a nexus opinion in support of the Veteran's claim. That evidence is both new and material. It was not of record as of the earlier decision, pre-dated the Veteran's death, and it goes to whether there is a nexus between the Veteran's disorders and his active service. Thus, the May 2006 petition to reopen the claims for entitlement to service connection is granted.
B. Laws and Analysis
As noted above, service connection generally requires evidence showing a present disability, an in-service event, and a nexus between that in-service event and the present disability. See Holton 557 F.3d at 1366; Shedden, 381 F.3d at 1167. Service connection may be granted on a presumptive basis where a veteran is diagnosed with either Type II diabetes mellitus or prostate cancer without any record of such diseases during service, if that veteran had active military, naval, or air service in the Republic of Vietnam for at least 90 days during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. Service in Vietnam including the waters offshore if the conditions of service involved duty or visitation in Vietnam. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309.
Service connection may also be granted on a presumptive basis for certain chronic diseases if the disability manifested to a compensable degree within the applicable presumptive period following a veteran's separation from active service. 38 U.S.C. §§ 1110, 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For Type II diabetes mellitus and prostate cancer, the presumptive period is one year. 38 C.F.R. § 3.307(a)(3).
Service connection for a recognized chronic disease can also be established through continuity of symptomology. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For chronic diseases shown as such in active service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been shown in active service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished for merely isolated findings. Id.
Accrued benefits are periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000.
While an accrued benefits claim is separate from a veteran's claim filed prior to death, the accrued benefits claim is derivative of the veteran's claim; thus, an appellant takes the veteran's claim as it stood on the date of death, but within the limits established by law. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). For entitlement to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998); Taylor v. Nicholson, 21 Vet. App. 126, 128-29 (2007). The application for accrued benefits must be filed within one year after the date of death. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c).
Substitution is possible for pending claims when a claimant dies on or after October 10, 2008. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. A substituted claimant may not raise a new issue; however, a substituted claimant may raise a new theory of entitlement in support of a claim. 38 C.F.R. § 3.1010(f)(2). A substitute has the same rights as the claimant regarding hearings, representation, appeals, and the submission of evidence. The substitute must complete any required action required by law with the time period remaining for the claimant to take such action on the date of his death, and the time remaining will start to run on the date of the mailing of the decision granting substitution. Id. § 3.1010(f)(3). Stated differently, the record is not closed on the date of death of the original claimant, but rather, it remains open for the submission and development of any pertinent additional evidence for substituted claimants.
In August 2014, following a remand order from the Board, the RO deemed appellant's claim for accrued benefits to be akin to a claim for substitution. A March 2015 supplemental statement of the case reported that the RO deemed appellant to be a substitute claimant.
Service treatment records do not include diagnoses for diabetes mellitus, type II or prostate cancer. Appellant does not contend, and the evidence of record does not show, that the Veteran's symptoms for either diabetes mellitus, type II or prostate cancer were continuous since his separation from active service in 1968. Moreover medical evidence of record shows that the Veteran was diagnosed with diabetes mellitus, type II in July 2000 and prostate cancer in 1999, approximately three decades after his separation from active service.
Appellant's principal contention is that entitlement to service connection is warranted based on the Veteran's purported exposure to Agent Orange while serving aboard the U.S.S. Kitty Hawk. As discussed above, and incorporated by reference herein, the competent, probative evidence of record indicates that the Veteran's service aboard the U.S.S. Kitty Hawk did not constitute service in Vietnam for purposes of 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's duties did not entail shore visits, and the U.S.S. Kitty Hawk was too large of a vessel to either dock in Vietnam or navigate the inland waterways of Vietnam. See 38 C.F.R. § 3.313(a). Moreover, deck logs show that the U.S.S. Kitty Hawk did not dock in Vietnam during the Veteran's active service. For the reasons discussed above, appellant's statements and testimony, a statement from the Veteran's daughter, and two letters from one of the Veteran's treating psychologists are not credible evidence that the Veteran ever set foot in Vietnam.
Because the weight of the evidence is against appellant's claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Accordingly, service connection for diabetes mellitus, type II and prostate cancer must be denied.
ORDER
Entitlement to service connection for the Veteran's cause of death is denied.
Petition to reopen claims for entitlement to service connection for diabetes mellitus, type II and prostate cancer is granted.
Entitlement to service connection for diabetes mellitus, type II is denied.
Entitlement to service connection for prostate cancer is denied.
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KELLI A KORDICH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs